The Outrageous, Unjust Rule That Lets New York Drivers Who Hit Pedestrians Off the Hook

If the city is serious about street safety, it must replace a terrible old precedent with a strong new one.

Earlier this year, a 9-year-old boy named Cooper Stock was struck and killed by a New York City taxi cab while crossing the street with his father. They were in the crosswalk and had the walk signal at the time; Cooper was holding his father's hand. It was a tragedy of the worst proportions—and became one degree still worse when it emerged that the driver wouldn't face any severe charges such as manslaughter or criminal negligence, but would receive only a traffic violation and a small fine.

Local officials have tried to turn the terrible incident into social progress by enacting Cooper's Law, which allows the city to revoke the license of a cab driver who hits pedestrians who have the right of way. (Unfathomable as it seems, such a law did not already exist.) But Cooper's mother, Dana Lerner, isn't sure much good will come of her family's misfortune. Writing in the New York Times this week, Lerner brought attention to the outrageous, unjust legal precedent that makes it hard to prosecute drivers like the one who hit her son:

A New York State case law precedent known as the "rule of two" stipulates that there must be two misdemeanors for a charge of criminal negligence to be brought against a driver who kills. …

This artificial and arbitrary threshold discourages law enforcement from properly investigating, charging, and prosecuting drivers who kill.

The "rule of two" operates on the presumption that drivers who are violating two traffic laws at the time of a fatal crash are being criminally negligent behind the wheel. So if you're going 20 miles per hour over the speed limit and zipping through red lights when you hit someone, you probably knew you were being irresponsible and risking a crash. On the flip side, drivers who merely hit a pedestrian or cyclist—even hopping the curb in the process—aren't necessarily being reckless enough to face criminal charges if that's the only thing they've done wrong.

The "rule of two" isn't just arbitrary; it's biased against the victim.

Regardless of the fact that drivers do honestly lose control of a car sometimes, the list of problems with the "rule of two" is a long one. For starters, it should be reiterated that this is not an actual law but rather a legal precedent. (Dana Lerner writes that she wanted Cyrus Vance Jr., the Manhattan district attorney, to use her son's case to challenge the "rule of two," but he refused.) Nor is the rule applied uniformly; Brad Aaron of Streetsblog has reported that many New York drivers who exceed the two-violation threshold still aren't charged. So the "rule of two" isn't just arbitrary, it's biased against the victim.

The most obvious shortcoming is also the most absurd and upsetting: The act of hitting the pedestrian or cyclist with right of way doesn't count as one of the two violations. You typically need two abuses over and above the collision itself to face criminal charges.

This last problem might finally have been addressed in the eyes of the law with the recent passage of legislation called "Intro 238." The new law makes drivers who fail to yield to pedestrians and cyclists with the right of way "guilty of a traffic infraction" by the very nature of the accident—in other words, no further negligence is needed. As attorney Steve Vaccaro explains, again at Streetsblog, the law "should mean … an end to the 'rule of two.' "

Of course, for a new precedent to emerge, the old one must be challenged, and it remains to be seen how courts and cops will interpret the change. While Mayor Bill De Blasio's Vision Zero campaign to end traffic fatalities is a good start to pedestrian safety, Lerner writes that New York doesn't just need more safety laws—it needs "to hold law enforcement accountable for using the laws we have." Unfortunately, she knows what she's talking about. Let's hope the city listens.